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THE PEOPLE, Plaintiff and Respondent, v. MICHAEL KILLEAN et al., Defendants and Appellants.

(Opinion by Mosk, J., with Tobriner, Acting C. J., Peters, J., and Kaus, J., concurring. Separate concurring opinion by Sullivan, J. Dissenting opinion by Burke, J., with McComb, J., concurring.) [4 Cal.3d 424]

COUNSEL

Michael Killean and Thomas Joseph Leahy, in pro. per., and Herbert E. Selwyn, under appointment by the Supreme Court, for Defendants and Appellants.

Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Frederick R. Millar, Jr., Deputy Attorney General, for Plaintiff and Respondent.

OPINION OF THE COURT

Memorandum

MOSK, J.

Michael Killean and Thomas Joseph Leahy were found guilty of kidnaping for the purpose of robbery (Pen. Code, § 209), kidnaping (Pen. Code, § 207), and first degree robbery (Pen. Code, § 211). The judgment was affirmed by the Court of Appeal in an unpublished opinion in 1968, and we denied a petition for hearing in February 1969. In October 1969 our decision in People v. Daniels, 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225], was filed. Thereafter Killean and Leahy filed an application with the Court of Appeal for recall of the remittitur, presenting the sole contention that their case should be reconsidered in the light of Daniels. The application was denied, and we granted their petition for hearing and transferred the application to this court.

In the course of robbing a jeweler and his companion in the former's apartment, Killean and Leahy caused them to move across the threshold and through various rooms in search of valuables. These movements were merely incidental to the robbery and did not substantially increase the risk of harm beyond that inherent in the robbery itself. (People v. Daniels (1969) supra, 71 Cal.2d 1119, 1139.)

For the reasons stated in People v. Mulch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], Killean and Leahy were therefore convicted of kidnaping under a statute which did not prohibit their acts at the time they committed them, and are entitled to a recall of the remittitur in their appeal and an order vacating the judgment on the kidnaping counts.

The cause is retransferred to the Court of Appeal for the Second Appellate District with directions to recall its remittitur in People v. Killean & [4 Cal.3d 425] Leahy, Crim. 14188, and to issue a new remittitur vacating the judgment on counts II and III and affirming the judgment on count I.

Tobriner, Acting C. J., Peters, J., and Kaus, J., concurred.

SULLIVAN, J.

For the reasons set forth in my concurring and dissenting opinion in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], I concur in the majority's disposition of this case.

BURKE, J.

I dissent for the reasons set forth in my dissent in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633]. In my opinion the application for recall of the remittitur should be denied.

McComb, J., concurred.